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Stephen Harper should look for a woman to fill a spot on Supreme Court: Editorial

Stephen Harper needs to fix the Supreme Court appointment mess, and should seriously consider naming one of many qualified women.

Justice Marc Nadon in Ottawa in October 2013. The Supreme Court of Canada ruled he is not qualified to fill a Quebec seat on the court. (Adrian Wyld / THE CANADIAN PRESS)

Fri., March 28, 2014

If Prime Minister Stephen Harper is peeved that the Supreme Court has shot down his latest, embarrassing appointment to the high bench, he is biting his tongue. Better yet, he has decided not to compound his gaffe by trying to do an end run around the court.

It’s a wise man who knows when it’s time to suck it up and move on.

While “very surprised” that Canada’s top justices rejected his Quebec nominee, Justice Marc Nadon, by a strong 6-1 margin, Harper has prudently decided to swallow his wounded pride and to respect both “the spirit of the decision” and its letter rather than try to circumvent it, as the Star’s Tonda MacCharles reported. Anything less from a self-professed law-and-order Prime Minister would have invited contempt and ridicule.

The Supreme Court found Nadon’s appointment to be void because the law requires that nominees for the three Quebec seats on the nine-member court must come from the Quebec superior trial or appellate courts or be from among members of the bar with 10 years’ experience. As a semi-retired judge on the Federal Court of Appeal who hadn’t lived in Quebec or practised law there for decades, Nadon simply wasn’t eligible and Harper was wrong to put him forward. The provision is in the law to protect Quebec’s unique legal rights within the federation.

Harper made a mess by ignoring precedent and the law in naming Nadon over Quebec judges and lawyers who are fully entitled to be appointed. Nadon’s name didn’t appear to be on anyone’s shortlist. But he has upheld the Conservative government’s stance in several controversial cases and is regarded as sharing Harper’s view that the courts should defer to Parliament and the government.

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The nomination was bound to be wildly controversial and Harper knew it. Still, he bulled ahead and even tried to rewrite the Supreme Court Act to legitimize the appointment. The court shot down that as well.

Even then there was speculation that Harper might try to do a cynical “end run” around the court by naming Nadon to the Quebec Superior Court for a day, then to the Supreme Court. That would have only confirmed his questionable judgment.

All this raises troubling questions about the Prime Minister’s prerogative to name Supreme Court justices via a consultative process with the provinces and the legal community that is murky at best, and without any American-style confirmation process to act as a serious check against poor or unlawful appointments. Canadians have been fortunate that most prime ministers have made good choices most of the time. Harper, however, has managed to discredit the process.

He has had nearly a year now to name a replacement for outgoing Justice Morris Fish, who announced last April that he would retire in August. The undue delay, crowned by the Nadon fiasco, is inexcusable. Canadians deserve a Supreme Court that has full bench strength, credible Quebec representation and top-quality jurists.

We also need a court that is broadly gender-balanced.

On Harper’s watch, the number of women has fallen from four to three. Four of his five appointees have been men. Yet there was no shortage of qualified female candidates for the Quebec seat. They include Chief Justice Nicole Duval Hesler of the Quebec Court of Appeal and her colleagues Marie-France Bich and France Thibault, to name a few. As Harper tries to get it right this time around, he should try to get a woman.

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